Beating a DWI case may soon get a lot tougher

DWI lawyer David Burrows in the hallway leading to his corner office, surrounded by framed not-guilty verdicts.

Mark Graham

I'm going to screw up, Andrea says to herself as she walks a straight line in front of a Dallas police officer. Only hours into what was supposed to be a relaxing Memorial Day weekend, Andrea is on the side of the road near the bar she just left on Lower Greenville Avenue. She thinks she's sober, but she has to prove it to this cop, and she's starting to doubt herself. I'm going to screw up.

It's a cold Friday night just after 11 p.m., and the 29-year-old now engages in a balancing act. She closes her eyes, holds out one leg and touches her nose. The officer points a flashlight at her face as her eyes track a red penlight that he moves back and forth. He asks her to count backward. Finally done, she thinks she has passed the tests.

The officer thinks otherwise. He handcuffs her and places her in the back of a squad car headed to the Dallas County jail. Still in handcuffs, she's brought to a room to take a breath test, which she refuses. "I'd always heard that if you've had anything to drink, do not take it," she said recently at a restaurant, as she nervously toyed with a ring. "Don't blow! Don't blow!"

The immediate penalty for refusing the test is light: a 180-day license suspension, which a decent lawyer can easily reduce. But her refusal to take the breath test means the officer will be denied a valuable piece of evidence to prove she had been driving drunk if her case later goes to court.

This night in 2008 is different, though, and it's not over yet.

Andrea sits on a bench in a long hall inside Lew Sterrett jail. After about an hour, a cop hands her a fax. "We have a warrant for your blood."

Andrea, who recounted her story with the condition that we not publish her full name, has the dubious distinction of being perhaps the first person arrested during the premiere weekend for an experimental Dallas Police Department program called "no refusal." Since last Memorial Day, the DPD has had four more no-refusal weekends, most recently this St. Patrick's Day. So far, 404 people have been arrested and, in some cases after being physically restrained, forced to give a blood sample.

In the video above, police draw a driver's blood for evidence in a DWI case.

Drivers stopped on suspicion of DWI can refuse to take roadside sobriety and breath tests, and about half of the nearly 4,000 people arrested annually in the city of Dallas for DWI refuse the breath test. The number of "total refusals" of both kinds of tests have been skyrocketing in the last year and a half, say officers, judges and lawyers. Drivers are getting smarter about the law, and DWI cases are getting tougher for police and prosecutors to win.

To counter that, police have arranged to have judges standing by on no-refusal weekends, ready to sign search warrants that allow officers to get blood from drivers whether they like it or not. The weekend before this St. Patrick's Day, 32 people were arrested for DWI, and about half refused to give up their blood voluntarily to a certified medical technician stationed at the jail. Two resisted even after being served with search warrants and were cuffed and strapped into a chair so their blood could be drawn.

Dallas' no-refusal program is part of a trend in DWI policing that is picking up momentum statewide—one that could quickly go beyond the experimental stage here if legislation crafted by the Dallas County District Attorney's Office passes in the Legislature. It cleared the Senate on March 30. Dalworthington Gardens, a small Tarrant County community, was the first arresting agency to go full-time with a blood-draw program in 2005, and more than 30 agencies across the state have contacted the town since then to learn how to replicate the program. Most recently, the Austin police chief announced he is ready to go full-time with the program, although he is being met with resistance from the American Civil Liberties Union and a grassroots group named Stop the Vampire Cops.

It's not hard to understand why police and prosecutors are looking for a new weapon to help get drunken drivers off the road. In 2007, Texas led the nation in the number of people killed in alcohol-related accidents, according to the latest statistics available from the National Highway Traffic Safety Administration. More than 100 people were killed in alcohol-related traffic accidents in Dallas County last year, or about 49 percent of traffic fatalities.

Alcohol floods the courts too. Around the courthouse, when lawyers talk about misdemeanors, what they really mean is DWI. That's not surprising, considering that two-thirds of the 875 misdemeanor cases that went to court last year were DWIs—which include drivers intoxicated by alcohol, drugs or both. Fully three-quarters of misdemeanor jury trials involve DWI, and defendants won 57 percent of cases heard by judges or juries.

Dallas would have already gone to the no-refusal program full-time, but under current law the process of securing the required search warrants is simply too time-consuming. An arresting officer must fax a request for a search warrant to a city, district or county criminal court judge who volunteers to sit at home by a fax machine all night, ready to sign off on the warrants and fax them back.

The legislation awaiting action in Austin would simplify the process by allowing magistrates, already on staff 24-7 at the jail to set bonds, to issue search warrants to collect blood. That simple change would greatly reduce the two to three hours it takes an officer to get a blood sample and shorten the turnaround time for getting cops back on the streets.

Increasing the use of blood as evidence would radically shift the balance of power between prosecutors and defense lawyers and will almost certainly lead to court challenges over whether routine blood tests trample on drivers' right to privacy, as the Texas ACLU contends. Whatever the courts later decide, right now it looks as if there will be blood, thanks to the support of police, prosecutors and the advocacy group Mothers Against Drunk Driving.

Perhaps no one knows the stakes in this fight better than David Burrows, chairman of the statewide DWI committee for the Texas Criminal Defense Lawyers Association and arguably Dallas' DWI king.

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The long hallway outside Burrows' office on North Central Expressway is lined with framed pieces of paper, each a not-guilty verdict he has won, and he's run out of room to hang them all. Burrows is a tall figure with a trim mustache, sharp eyes and sun spots on his balding head. On a column in the office hangs a framed award given to him by the Dallas Observer: "2005 Best DWI Lawyer."

As successful as Burrows has been over the decade in which he's built a thriving practice devoted solely to DWI defense, he's been careful to maintain a low profile when it comes to publicity. Partly that's because he wants to stay out of the line of fire of groups like MADD, he says. Besides, he's not a political figure, he says, and he doesn't have any agenda other than to win. "I just don't want to come across as promoting people drinking and hurting people," he says. "I do want to promote that you can go to a restaurant and have a drink and be fine."

Almost all of the 100 DWI cases that Burrows will bring to court in a year—most lawyers will set about 12 DWI cases for court annually—involve clients who have refused a breath test, though over the last year and a half he has received more cases in which drivers have refused to take either breath or roadside sobriety tests. "You know the word's getting out," Burrows says. "Somebody says, 'Well, I was convicted, and I didn't know that I didn't have to do anything.'"

Refusing a breath test isn't exactly a get-out-of-jail-free card for tipsy drivers, but it certainly helps. In Texas, prosecutors must prove that a driver was mentally or physically impaired because of drugs, alcohol or both, or had a blood-alcohol concentration of 0.08 or higher. Whether a jury returns a guilty verdict in a DWI case ultimately comes down to a combination of whatever tests a driver takes and what jurors see on the videos officers routinely shoot during traffic stops. Appear sober as a judge on the video, and a good defense lawyer like Burrows can sometimes pick apart a negative test result.

If you don't appear drunk, and there's no breath evidence that says otherwise, well...

"The person has to look normal," Burrows says. "If you have a client who doesn't look normal, you're just spinning your wheels."

Even an ace lawyer like Burrows shies away from trying cases in which his client had a bad breath test. Burrows is a numbers guy who keeps a running tally of his win-loss record on his computer. He speaks in percentages and odds and bases his strategies on stats and scientific theories, and he doesn't like to bring cases to trial in which he believes he has less than a 50-50 chance of winning. When a client has taken a breath test that comes back with results above the legal limit, he figures he has only a 30 percent chance of victory in court. "I'm not really big on long shots," he says.

Sometimes, though, if the client wants to go to court badly enough, he'll do it. That happened last year. He had a client, fresh out of SMU, who scored 0.19 on his breath test—more than twice the legal limit—but his client's father was determined to keep a conviction off his son's record. And this February, he defended 30-year-old Zach Warner, who scored 0.14 on his breath test but was resolved to try his luck in court. Burrows won both cases.

That sort of success explains why other defense lawyers look to Burrows to teach them his methods. In May, Burrows will host his third DWI strategy conference, and this year the focus will be blood cases. He's calling it the DWI Innocence Project, a play on the Texas Innocence Project, a nonprofit organization that works to free prison inmates wrongfully convicted of felonies.

Once lawyers learn about Burrows' courtroom methods, they often retool their own approach to incorporate his style, says Lawrence Boyd, another high-winning Dallas DWI lawyer, who will serve as course chairman at Burrows' conference. "David Burrows revolutionized the way that a DWI case is handled," Boyd says. "We're educating attorneys on how to try a DWI case from start to finish. Every criminal lawyer is going to get calls on DWI. Every person you know has a co-worker or a cousin or a brother-in-law who's going to go get a DWI." Boyd considers DWI the bread and butter for defense attorneys, cases in which "you can do a great job and get a great result."

In Burrows' practice, a winning defense starts with picking the right jury and connecting with them.

"I'm from Dallas," Burrows began at a February trial. He leaned against the counsel desk and took his time, as if speaking to friendly strangers in his own living room. "I've been here all my life." After telling them about his studies at SMU and Baylor, he moved directly to the question that was on the minds of potential jurors. "I know what you are saying in your heads. I wonder what he's accused of?" Then he adopted a somber tone. "Well, my client is innocent." It's the prosecution's job to prove guilt beyond a reasonable doubt. "Will you have an open mind and make the state prove to you that the breathalyzer works?" There was a round of enthusiastic nods.

Burrows' style in the courtroom is folksy, but that's part of a carefully crafted strategy. "When he walks into a courtroom to try a case, there is a purpose behind every move he makes and every word he speaks. It's scalpel-like in its precision," says Rick Hagen, president of the Texas Criminal Defense Lawyers Association.

If his client appears sober on the video, then Burrows believes doubt has already been planted in the jury's mind. "The jury doesn't need somebody to tell them what they're seeing," Burrows says. Perhaps the officer made a mistake, or maybe the field tests the officer based the arrest on were faulty. Or, if the client took the breath test and the score was high, perhaps the breath test machine itself, the Intoxilyzer 5000, didn't work properly.

Defense lawyers used to focus on attacking the character and intelligence of the police officer making the arrest, but the stat-minded Burrows crunched his numbers and found that approach wasn't working. Jurors don't want to see a cop accused of being a liar, so Burrows took a different tack. He limits the number of questions he poses to officers on the witness stand to 15, tops, and zeroes in on how the evidence was collected.

Rather than attack a cop, Burrows focuses on the possibility that the officer made a straightforward mistake. "[DWI is] an opinion crime," he says. "The old-school lawyers would berate the officer and try to break down the officer and show the officer was incompetent, and I just decided, wait a minute, it's not about the officer. It's about an opinion. And an opinion doesn't reach beyond a reasonable doubt."

Whether someone looks drunk is subjective, but a breath test produces a concrete, persuasive number. With a breath test score, Burrows says, "you've stepped out of the opinion."

So how does Burrows manage to win, by his own accounting, 30 percent of the cases he tries that have Intoxilyzer results? He uses science to attack the science behind the breath test. For that, Burrows relies on his own experts.

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The breath test, invented in the earlier part of the 20th century, measures the amount of alcohol in your breath and uses that measurement to approximate the level of alcohol in your blood. And there's the rub: The results are an approximation and can vary depending on a number of factors—how much you drank, your size, when you had your last drink before the test and what you've eaten, for example.

If a client has a high breath test score but on the video seems sober and speaks without slurring, Burrows will argue that something went wrong somewhere with the analysis of the breath sample. To bolster his case, he often calls on Dr. Gary Wimbish, a forensic toxicologist.

Take, for example, the case of Burrows' client Zach Warner, who blew a 0.14 on his breath test. According to Wimbish, science says that anyone with that high a blood-alcohol level should appear visibly drunk, but in Warner's case, he appeared relatively sober on his arrest video. The difference between how he appeared and how the test said he should have looked was enough for Burrows to sow doubt in jurors' minds and win an acquittal.

Burrows also will occasionally argue that the state cannot prove his client was intoxicated at the time of arrest, since the breath test was taken more than an hour later. It takes a while for the human body to absorb alcohol into the bloodstream, so paradoxically, a driver could be below the legal limit for intoxication when arrested but become drunker as he or she waits to blow into the Intoxilyzer, Wimbish says.

"David is able to distill the essence of a case to the current knowledge known about alcohol relating to breath and blood," says Wimbish, who spends many afternoons at the county courthouse testifying for a number of defense lawyers at a rate of $120 an hour. "David deals with the facts. He is a pretty good scientist."

Burrows also uses science to attack the field sobriety tests—that series of balance and mental acuity exams that officers ask drivers like Andrea to perform at the roadside. Officers will testify that the tests are accurate and backed up by studies conducted by the National Highway Traffic Safety Administration. Burrows has his own expert to counter a failed sobriety test—a former police officer and Texas Alcoholic Beverage Commission commander named Dexter Simpson.

According to NHTSA, a simple test like watching to see if a suspect's eyes follow a moving light smoothly or if they jerk—called the horizontal gaze nystagmus test—is an accurate measure of drunkenness up to 95 percent of the time. Not quite, Simpson testified in a recent Burrows case. Both Wimbish and Simpson have delved into the NHTSA's own data to find, they claim, that the test produces false positives 59 percent of the time.

Like Wimbish, Simpson has made a career out of testifying as an expert on behalf of defense lawyers in DWI cases. He's even written a book, The DWI Conspiracy, alleging a plot in the manipulation of the field sobriety tests that result in the faulty arrests of thousands of innocents—though Burrows doesn't bring up the book at trial.

"We respect the court system," Simpson says. "We just beat it every chance that we get, because it's defeatable. I shouldn't be able to win these cases like this. It should be difficult, but it's not."

At least for now.

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It's St. Patrick's Day no-refusal weekend, and Senior Corporal Bobby Watkins, a member of the Dallas DWI squad, is on duty Saturday night. Only 15 minutes after pulling out of central headquarters, he's called to where a possible drunk driver was stopped heading the wrong way down a one-way street. At the scene, an Expedition is parked on the sidewalk on Elm Street. The woman behind the wheel is wearing a festive, bright green T-shirt.

"We're doing blood tonight," says Watkins, a cheerful cop with a whisper of a voice, as he parks his squad car. He directs a spotlight into the windshield of the Expedition and walks over. The sobbing woman has red hair stuck in clumps to her face. Watkins asks how much she's had to drink. "Two drinks," she says. "Oh, two drinks?" he repeats. (On the way over here, Watkins told me that virtually every driver he faces says they had only two drinks.) The woman's left leg is in a splint, and she limps away from her car at Watkins' request. Between sobs, she says she is a single mother of three.

Watkins tells her to hold the grill of the squad car while he performs a series of field sobriety tests. He's looking for at least four clues that she's drunk. Counting backward from 48 to 33, she skips 45. She recites the alphabet correctly. Then he asks her to focus on a red penlight as he moves it broadly to one side and back. Her light eyes follow it. Her mascara has run and collected to form a smudged ring below her eyes. He sees her eyes jerk during the eye test. Next, he removes a portable breath machine. He can't use the reading in court, but it helps to confirm his decision to arrest the woman. She scores 0.184.

She's placed in handcuffs and starts squirming because her bladder is full. She needs to go now, she complains, but there's nothing but a vacant parking lot and multi-storied garage nearby. As Watkins fills out more paperwork, urine collects in a pool below her sneakers.

In the Dallas Police Department, there are usually 10 officers on the DWI task force specializing in DWI cases. The squad knows what it takes to win at trial.

"We're building a case right from the start," Watkins says as he drives to the jail, where the single mother will be booked and have her blood drawn. "If you arrested this person, you got them off the street. That's a win-win for us and for the citizens of Dallas. But once you get them in the jail, and they refuse to give samples, even though they had six clues, then they win the prize."

Watkins says that everything he does in the field is geared toward a future trip to the witness stand. First, he determines if there is enough reasonable suspicion to stop a car—say, driving the wrong way down Elm Street. Next, he uses his senses. "What do you see? What do you smell? What do you hear? You see bloodshot eyes. Or you ask for their license, and they hand you a credit card. Or they are fumbling with the license and dropping it on the floor." Then, "What do you smell? Alcohol." Finally, "What do you hear? 'Officer, I had two beers.' Well, maybe they did, but then they are giving you inconsistent statements." The woman in green says she had her first drink at 7, but then says she had her first drink after leaving her house, which was at 4 p.m. So Watkins asks her again, and she says 5.

He adds up all this to decide whether to make an arrest. Watkins says that on some nights, although he'll stop five people, he'll arrest only one or two.

Of course, if a driver pisses herself on the street, that's pretty much a lock arrest-wise.

The woman arrested on Elm Street is dragging her feet across the police parking lot to the basement entrance of Lew Sterrett jail. "This is so embarrassing," she mumbles.

Once inside, she stays for a while inside the restroom, which is a glass room visible to those in the hall.

Watkins waits for her with his back to the room. "If you were at a .09," he says, "you would say, 'I can't use that bathroom because people are going to see me!'"

A stream of people flowing into the jail offers a glimpse of how big the DWI problem is.

A handcuffed man followed by another officer comes through the mechanized door. His shoulders are pulled back tight. He also needs to use the restroom and is spinning in circles, holding it.

The door opens again. Another young woman in handcuffs comes through, followed by another officer. She shuffles her feet. Blood is splattered across her jeans. "What happened here?" Watkins asks. "DWI accident," the other officer replies.

"The regular patrol officers, they shy away from DWI arrests...because of some good lawyers out there, yes, like David Burrows. If you don't know your material, they will nail you to the cross," Watkins says.

But all his preparation can fall flat in the face of a determined assault from lawyers like Burrows and his experts. That's why blood would be such a game changer. A breath test may be iffy, and even a hardcore drunk may pass a field sobriety test. But a blood test that shows a high level of alcohol is tough to beat. That's why Mothers Against Drunk Driving is baying for blood.

MADD firmly believes that punishment works as a deterrent. So, when 57 percent of the people who go to court for first-offense DWI are acquitted, that means a growing number of Dallas drivers haven't learned their lesson. With blood in play, once the public gets word that it is nearly impossible to get out of a DWI arrest, people will think twice before drinking and driving, says Mary Kardell, executive director of the North Texas MADD chapter. The average defendant drinks and drives 70 times before they're caught, Kardell contends. "If they are dumb enough to drink and drive and get themselves pulled over, then they get what they deserve."

Dallas District Attorney Craig Watkins created the blood legislation awaiting action in Austin, and it tops his nine-point legislative agenda.

Misdemeanor court Judge Lennox Bower was the first judge to sign a blood warrant during Dallas' first no-refusal weekend in 2008. Bower had reservations about forcing people to give up blood, but he knew the practice was sweeping the state and figured he might as well get involved early and have some input. For one, he insisted that blood draws take place at the jail and aren't performed by police.

Then he started to look at the numbers. After that first no-refusal weekend, of the 18 people who refused to give a sample of their breath, blood work revealed that all but one were well above the legal limit for intoxication. The average was 0.15. The one exception was Andrea, who hired Burrows to defend her. Her results came back at 0.05, and prosecutors dismissed her case.

Then Bower looked at his own caseload and noted that in a growing number of DWIs, prosecutors had no evidence because the defendant had refused to take any tests.

"When I saw that, and then saw what the juries are doing—which is acquitting total refusal cases—I realized that this is not only inevitable, but necessary," Bower says. After he heard that some drivers had to be physically restrained, he grew less comfortable with the practice. "There are some parts of this I am still conflicted on," Bower says. "I don't like to literally force them if they are refusing, but once I started seeing the numbers, it made it easier to accept."

Right now lawyers are debating whether no-refusal programs are constitutional. Texas law states that if a driver refuses to give a sample, "none shall be taken," but mandatory blood-draws backed by search warrants have been upheld by the Texas Court of Criminal Appeals.

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For those arrested during St. Patrick's Day weekend, the consequences will be costly, win or lose. Burrows bases his fees, anywhere from $5,000 to $10,000, on how long he thinks a trial will last. A convicted driver pays the court $1,000, the probation office $62 per month for two years and the state $1,089 for three years. Plus, the conviction goes on your record.

Burrows knows all too well the price of a guilty verdict. In 1996, he was convicted of failure to file hundreds of thousands of dollars in taxes and ordered to serve a two-year sentence. But he never lost his law license, just any semblance of his previous law practice. Burrows came from a modest upbringing; his father was a truck driver, and his older brothers were star athletes, so he turned to academics at a young age to feed his intensely competitive spirit. After he served his sentence, he quickly dedicated himself again to winning in law.

He started trying DWI cases because those were the phone calls he was getting when he resumed practicing. Specializing allowed him to stay on top of his game. "Every trial I would lose, I'd learn more. As I would lose a case, I would say, 'OK, I gotta adjust next trial' and see what was working and what was not."

Now Burrows is beginning to get calls on DWI blood cases. As of February, only 12 of the hundreds of cases from the start of the no-refusal program had come to court, resulting in a dozen guilty pleas. While Burrows is disturbed that lawyers are shying away from bringing blood cases to court, he realizes that blood marks a new challenge to the strategies he's spent a decade perfecting. It's time for a new game plan.

For one thing, cases where the blood alcohol level is determined to be at 0.10 or higher will stay out of the courtroom. The blood evidence is simply too persuasive—unless Burrows and other defense lawyers can find a way to keep the evidence from ever being introduced at trial.

Fort Worth attorney Mark Daniel succeeded in suppressing the blood evidence against one of his clients, District Judge Elizabeth Berry. The court ruled that there wasn't enough evidence to justify her arrest. Daniel will speak at Burrows' DWI Innocence Project on "exposing flaws in the search warrant of a DWI blood test case."

"If the blood test comes in to evidence, I don't think anybody legitimately can say your chances will ever be better than 30 percent, with the exception if it's an 0.08 or 0.09, then I would give them 50-50," Burrows says.

Burrows also will continue to use science to challenge the blood tests and has invited Wimbish to speak at his conference. Wimbish says blood must be collected properly, which means according to forensic standards. If the officer takes the vial of blood and leaves it in his pocket for a couple of days before sending it off to the lab, that evidence is no longer admissible. Blood tests that are processed at a hospital rather than a forensic lab are also susceptible to challenge.

Burrows doubts the blood program will ever go full-time, particularly for large agencies like Dallas. Blood tests, besides being time-consuming, could actually lower the amount of fines the county collects because officers will be less likely to make borderline arrests. "Just because today the courts seem to be leaning toward blood testing, that doesn't mean it's going to stay that way," Burrows says. "We don't have any definitive answer from the Texas courts whether that is a reasonable violation of a person's rights. Basically, it's going to take some cases to figure this whole thing out."

For Burrows to continue handling DWIs, he must believe there is still the possibility that his clients are innocent. "In my own mind, I want to feel like they're not intoxicated. You can't sell a product you don't believe in," he says.

"If you do blood testing, I think the gray area is going to drop," he says, then pauses. "Well, the lawyers will help them through the plea bargain process. But as far as trials, we'll start trying other cases.

"I'll say the politically correct thing: I'll be happy to go into another line of business if it stops you from driving while intoxicated. But as long as there's gray area in DWI..."

With defense lawyers just beginning to meet about blood cases, it's likely the area will remain gray for a while.